UAV Terms of Service
In the absence of definitive written agreement between you and DroneUp, LLC (together with its subsidiaries and affiliates, “DroneUp”, “we”, “our”, or “us”), the services described on the statement of work, order form and/or quote sent by us and confirmed by you (the “SOW”) will be governed by these UAV Terms of Service (the “Agreement”). This Agreement prevails over any terms or conditions contained in any other documentation and expressly exclude any terms and conditions included in a purchase order or any other document issued by you in connection with your order(s). This Agreement is effective upon the earlier of (i) the date shown on the SOW or (ii) our commencement of the performance of any services for you (the “Effective Date”). You and DroneUp may each be referred to as a “Party” and collectively as the “Parties”.
1. DroneUp Services:
A. You hereby engage DroneUp to provide the services as set forth on each SOW (the “UAV Services”). As a part of the UAV Services, DroneUp agrees to provide (i) a UAV, (ii) person(s) to pilot and safely operate the UAV, (iii) appropriate camera equipment capable of collecting the requested data or images, (iv) raw data obtained from the requested job including but not limited to images and other electronic data collected by the UAV.
B. The pricing for UAV Services is set forth on the SOW.
C. In the event we determine that any UAV Services cannot be completed within the requested time frame set forth in the Order Form, we will notify you of the delay.
D. In the event we determine that any UAV Services cannot be completed safely or in accordance with applicable law, we will promptly notify you and the SOW will be either modified or terminated. You will pay us for all UAV Services performed up to the time of any such termination.
E. You recognize that some of the UAV Services completed by us pursuant to this Agreement, may be completed by independent contractors managed by us.
F. We will provide any data and imagery obtained from the UAV Services on a timely basis. DroneUp and its pilot contractors may use the data and imagery in order to promote their services and business.
G. In certain cases, deliverables will be provided by a third party vendor (“Vendor Deliverables”). In such event, unless you and we have entered into an agreement with such vendor, such vendor’s terms and conditions (the “Vendor Terms”) will be applicable to the quotation, statement of work, or other definitive documentation describing the UAV Services. You acknowledge that you will have reviewed and agree to be bound by all of the Vendor Terms. Your sole and exclusive rights and remedies pertaining to the Vendor Deliverables (including any sale or provision thereof) shall be strictly limited to the rights and remedies (if any) set forth in the Vendor Terms, and such rights and remedies shall not be enforceable against or applicable to DroneUp. Notwithstanding anything herein or in the Vendor Terms to the contrary, in no event shall DroneUp be liable or obligated to you in any manner under or in connection with the Vendor Terms, it being agreed and acknowledged that DroneUp is not party to the Vendor Terms, has not agreed to the Vendor Terms, and is not bound thereby.
2. Payment:
A. Any payments due to DroneUp hereunder which are received after the due date shall bear interest at the rate of 18% per annum from the due date (or the maximum interest permissible by law if less than 18%). You will also reimburse us for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees.
B. If an advance payment is included in an SOW, you have agreed to make the advance payment to reserve DroneUp services at a later date. The advance payment is due upon execution or other confirmation of the SOW by you and will be credited against future services from DroneUp during the Term. You agree that any such advance is nonrefundable.
C. If a specific SOW is cancelled prior to its completion, you agree to pay for any costs and expenses we incurred prior to its cancellation.
3. Confidentiality: Except as otherwise provided in this Agreement, "Confidential Information" means (i) the terms and conditions of this Agreement, (ii) client data, and (iii) any other information that the disclosing Party ("Discloser") desires to protect against unrestricted disclosure by the receiving Party ("Recipient") and that (a) if disclosed in tangible or electronic form, is marked in writing as "confidential" or (b) if disclosed orally or visually, is designated orally at the time of disclosure as "confidential." In either case, Recipient agrees to exercise reasonable care to protect Confidential Information from unauthorized disclosure, which care shall in no event be less than the Recipient gives to protect its own Confidential Information. The Recipient may disclose Confidential Information only to its employees or agents that need to know such information and shall inform such employees, by way of policy and agreement that they are bound by obligations of confidentiality. Notwithstanding anything to the contrary contained in this Agreement, neither party shall be obligated to treat as confidential any information disclosed by the Discloser which: (1) is rightfully known to the Recipient prior to its disclosure by the Discloser; (2) is released by the Discloser to any other person or entity (including governmental agencies) without restriction; (3) is independently developed by the Recipient without any use of the Confidential Information; or (4) is or later becomes publicly available without violation of this Agreement or may be lawfully obtained by a party from any nonparty. Moreover, either party will be entitled to disclose Confidential Information of the other to a third party to the extent that this is required by valid legal or regulatory process, provided that (and without breaching any legal or regulatory requirement) the party to which the request is made provides the Discloser with prompt written notice and allows the Discloser to seek a restraining order or other appropriate relief.
4. Term:
A. This Agreement will become effective upon the Effective Date and will continue in force until completion of the UAV Services listed on the SOW.
B. Either of us may terminate the Agreement for a material breach by the other of any material term. The terminating Party must first give the breaching Party written notice of the alleged breach and a reasonable period of at least fifteen (15) days in which to cure the alleged breach. If the breach is not cured within the cure period, the terminating party may terminate this Agreement upon written notice to the breaching Party. Termination shall be in addition to any other remedies which may be available to the non-breaching Party.
C. Upon expiration or termination of this Agreement for any reason, all SOWs then in effect hereunder will immediately terminate.
5. Independent Contractors: The Parties will operate as independent contractors. Neither Party under this Agreement will have the power to bind the other. This Agreement does not create and shall not be construed to create a partnership, employer/employee relationship, joint venture or any agency relationship between the Parties or between you and a DroneUp pilot.
6. Representations and Warranties: The parties represent and warrant that each has the full corporate and legal authority to enter into this Agreement. DroneUp further represents and warrants that the UAV Services will be completed in accordance with applicable law. You further represent and warrant that you are either the property owner or have the permission from the property owner for the location where the UAV Services will be completed by us on your behalf. WITH RESPECT TO THE IMAGERY AND DATA PROVIDED UNDER THIS AGREEMENT AND PURSUANT TO THE UAV SERVICES, WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE.
7. Indemnifications: Each Party shall defend indemnify and hold harmless the other Party, including corporate affiliates and each of their respective officers, directors, shareholders, employees, representatives, agents, successors and assigns from and against all claims of a third party, to the extent arising out of a party’s gross negligence or willful misconduct in performing any of its obligations under this Agreement.
8. Limitation of Liability:
A. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS AND LOSS OF USE OF DATA, LOSS REVENUES OR LOSS OF BUSINESS OPPORTUNITY), EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
B. EACH PARTY’S LIABILITY TO THE OTHER ON ANY CLAIM FOR DAMAGES ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT (INCLUDING SOWs) SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE AMOUNT WHICH HAS BEEN PAID BY YOU TO US FOR OUR PERFORMANCE UNDER THE MOST APPLICABLE SOW. THE LIMITATIONS UNDER THIS SECTION SHALL NOT APPLY TO ANY BREACH OF SECTION 2.
9. Insurance: DroneUp will maintain sufficient insurance for any personal or property damage that occurs as a result of its completion of the UAV Services on your behalf.
10. Miscellaneous:
A. No Assignment -- This Agreement is personal to you. Neither Party may assign any of its rights or obligations hereunder, without the express written consent of the other Party. Notwithstanding the foregoing, we may assign this Agreement to a third party that acquires all or substantially all of the assets or stock of DroneUp.
B. Amendment -- This Agreement may only be modified through a written amendment signed by both parties.
C. Governing Law -- This Agreement is governed by the laws of the Commonwealth of Virginia, without regard to the conflicts of laws rules contained therein. The state and federal courts located in Norfolk, VA will have exclusive jurisdiction for resolving any disputes between the parties, and the parties hereto waive any objections to personal jurisdiction or otherwise in that venue.
D. No Execution -- By (i) confirming your acceptance of the SOW in writing (which may be by email or other electronic communication) or (ii) otherwise directing us (in writing or orally) to perform the UAV Services, you agree to be bound by the terms of this Agreement.
E. Complete Agreement -- This Agreement together with the SOW represents the complete agreement between the Parties regarding the subject matter of this Agreement and supersedes any other oral or written communication prior to the Effective Date.
F. Waiver -- A waiver by either Party at any time of a breach of any provision of this Agreement shall not apply to any breach of any other provision of this Agreement, or imply that a breach of the same provision at any other time has been or will be waived, or that this Agreement has been in any way amended, nor shall any failure by either Party to object to conduct of the other be deemed to waive such Party's right to claim that a repetition of such conduct is a breach hereof.
G. Force Majeure -- If either Party fails to fulfill its obligations hereunder (other than an obligation for the payment of money), when such failure is due to an act of God or other circumstances beyond its reasonable control, including but not limited to weather, fire, flood, civil commotion, riot, war (declared and undeclared), pandemic or epidemic (including, without limitation, the COVID-19 pandemic), revolution, or embargoes, then said failure shall be excused for the duration of such event and for such a time thereafter as is reasonable to enable the Parties to resume performance under this Agreement, provided however, that in no event shall such time extend for a period of more than one hundred eighty (180) days.
H. Construction -- The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning and not strictly for or against any of the parties. Headings of paragraphs herein are for convenience of reference only and are without substantive significance. In the event of conflict between this Agreement and a SOW, the SOW shall prevail but only with respect to that specific SOW.
I. Severability -- The terms of this Agreement are severable and the invalidity of any term of this Agreement shall not affect the validity of any other term.
J. No Third-Party Rights -- Notwithstanding anything in this Agreement to the contrary, this Agreement shall not be construed to create any legal, equitable, or beneficial interest in any third party or to vest in any such third party any interest with respect to the enforcement of this Agreement.
Updated 08/10/2022